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2010 DIGILAW 4313 (MAD)

Nachammal v. S. Murugesan

2010-09-24

G.M.AKBAR ALI

body2010
Common Judgment:-Review Applications are filed against the judgement and decree dated 20.1.2010 passed in S.A.No.780 and 781 of 2004 by this Court. 2. By a common judgment dated 20.1.2010 in S.A.Nos.780 and 781 of 2004, this Court dismissed the second appeals. The appellant has preferred the present review petitions on the following grounds,: i) This court having accepted that the suit property is a Grama natham and that the occupier of the Grama natham becomes the owner of the property ought to have allowed the appeals thereby confirming the title to the appellants; ii) This court having found that one Karuppa Naidu and thereafter, the appellants were in long possession of the suit property, ought to have held that the appellant's predecessor was the first occupier of Grama natham; iii) The Court ought to have considered that the appellants have established possessory title. 3. Before adverting to the above grounds and the maintainability of the present review petition, let us see the brief facts of the case which is as follows: The Review petitioner/appellants are the plaintiffs in O.S.No.309 of 1994 and the defendants in O.S.No.641 of 1995. They have filed the suit for declaration of title and consequential injunction in respect of the suit property in S.F. No.520/C Thanthoni village, Malaipatti Natham, Karur Taluk. They have claimed that the suit property is a Gramanatham and the plaintiffs grandfather was in possession and enjoyment by putting up construction and was running a tea stall and also residing in the property. On the basis of the continuous possession and as well as on possessory title they have claimed title. 4. The respondents claimed that the suit property belonged to his grandfather Ponnusamy Pillai who purchased the property under a registered sale deed dated 1.7.1919. He derived title by a release deed executed by his Brothers and Mother. He became the absolute owner and filed the other suit for declaration of title. Both the courts below dismissed the suit of the Revision petitioners/ appellants and decreed the suit of the respondent holding that the respondent had established his title and the appellants have no title. The appellants preferred the second appeals. 5. He became the absolute owner and filed the other suit for declaration of title. Both the courts below dismissed the suit of the Revision petitioners/ appellants and decreed the suit of the respondent holding that the respondent had established his title and the appellants have no title. The appellants preferred the second appeals. 5. While disposing the Second Appeals, this court considered the plea of the appellants that the suit property is a Gramanatham, that the appellants' predecessor in title was in possession, but has held that the property was assigned by the Government to one Karuppa goundan as a Manai (House Site) from whom the respondent's grandfather purchased and the appellant has not proved either possessory title nor title by adverse possession. 6. Mr. R. Subramaniam, the learned Senior Counsel for the revision petitioners contended that the Gramanatham cannot be assigned as it was not vested with the Government and the occupier of the Gramanatham becomes the absolute owner. The learned counsel has also contended that once long possession is proved the appellants are entitled to possessory title and the plea of adverse possession was given up during the course of argument of the Second appeals. 7. This court found that the suit property is a Gramanatham and the first occupier becomes the holder of the land. However, this court has also found that the property was assigned to one Karuppa goundan from whom Ponnusamy Pillai purchased. 8. Before adverting to the grounds raised by the revision petitioners, I am of the considered view that the nature of Gramanatham and rights of the holder of such Gramanatham has to be clarified. 9. Gramanatham has been defined in the Law Lexican as follows:- " Ground set apart on which the house of a village may be built" Gramanatham is the village 'habitation' where the land holders may build houses and reside. They are also known as 'House Sites" (Manai). They were classified as Gramanatham to differentiate from Inam lands, Ryotwari lands, Pannai lands and Waste lands, while later vested with the Government, the Gramanatham never vested with the State. 10. There were two enactments which deal with the Gramanatham lands, (i) Madras Estates (Abolition and Conversion into Ryotwari) Act 1948 (Madras Act XXVI of 1948 and (ii) The Madras Land Encroachment Act 1905 (Madras Act III of 1905). 10. There were two enactments which deal with the Gramanatham lands, (i) Madras Estates (Abolition and Conversion into Ryotwari) Act 1948 (Madras Act XXVI of 1948 and (ii) The Madras Land Encroachment Act 1905 (Madras Act III of 1905). Section 3 (b) of Madras Act XXVI of 1948 read as follows:- " with effect on and from the notified date and save as otherwise expressly provided in this Act the entire estate ( including all communal lands and porombokes) other non-ryotwari lands ......shall stand transferred to the Government and vest in them, free of all encumbrances; Section 2 of the Madras Land Encroachment Act 1905 (Madras Act III of 1905) reads as follows: 2. Right of property in public roads, etc., waters and lands:- (1) All public roads, streets, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark and of rivers, streams, nalas, lakes and tanks and all backwaters, canals and water-courses and all standing and flowing water, and all lands, wherever situated, save in so far as the same are the property-" (a) of any zamindar, poligar, mittadar, jagirdar, shortriemdar or inamdar or any person claiming through or holding under any of them or (b) of any person paying kist, kattubadi, jodi, poruppu or quit-rent to any of the aforesaid persons or (c) of any person holding under ryotwari tenure, including that of a janmi in the Gudalur taluk of the Nilgiri District and in the transferred territory or in any way subject to the payment of land-revenue direct to Government, or (d) of any other registered holder of land in proprietary right or (e) of any other person holding land under grant from the Government otherwise than by way of licence, and, as to lands, save also in so far as they are temple site or owned as house-site or backyard, are and are hereby declared to be the property of Government except as may be otherwise provided by any law for the time being in force subject always to all rights of way and other public rights and to the natural and easement right of other land-owners, and to the natural and easement right of other land-owners, and to all customary rights legally subsisting. (2) All public roads and streets, vested in any local authority shall, for the purposes of this Act, be deemed to be the property of Government. Explanation:- In this section "high water mark" means the highest point reached by ordinary spring-tides at any season of the year" 11. In 1959 2 MLJ 513 ( S.Rengaraja Iyangar and another Vs.Achikannu ammal and another ) this court held, "A house site owned by a person in what is generally known as Gramanatham is not, under Madras Act III of 1905, property of the Government". 12. In 1998 3 L.W.603 (A.K. Thillaivanan and A.K.Dayalan Vs.District Collector, Chengai Anna District and others) this court held as follows: " Being Gramanatham, it is obvious that the land in question had never vested with the Government. Section 2 of the Land Encroachment Act 1905 excludes Gramanatham owned as house sites. As such the provisions of the Land Encroachment Act 1905 can not be invoked by the respondents in respect of the land in question." 13. In 2010 -1- L. W.123 (A.Srinivasan and another Vs. The Tahsildar, Egmore Nungampakkam Taluk) this court held as follows: "Further from the decisions cited supra, it is clear that 'Gramanatham' can not be considered, ipso facto, as Government property. Once it is found that suit item No.1 is classified as 'Gramanatham' it should be held that it does not belong to the Government. Therefore, there can be no doubt that the defendant can not invoke the provisions of the Tamil Nadu Land Encroachment Act 1905." 14. Though there is no mention about gramanatham in both the Acts, it is not in dispute that the habitation of a village is only a gramanatham and will not vest with the government. The holder of the land and the successor in title are the owners of the land. Since Gramanatham is not vested with the Government, the learned Senior counsel for the revision petitioner submitted that there cannot be any assignment and the alleged purchase by Ponnusami Pillai is not valid. 15. This court was not persuaded by the above argument. Indisputably, an assignment (Ex.B.1) was made as early as 1st August 1904 in favour of one Karuppa Gounden for a house site (kid). His wife and children have executed a sale deed dated 17.8.1919 in favour of one Ponnusami Pillai. One Chellaiyee had executed a lease agreement (Ex.B.3) in favour of Ponnusami Pillai. Indisputably, an assignment (Ex.B.1) was made as early as 1st August 1904 in favour of one Karuppa Gounden for a house site (kid). His wife and children have executed a sale deed dated 17.8.1919 in favour of one Ponnusami Pillai. One Chellaiyee had executed a lease agreement (Ex.B.3) in favour of Ponnusami Pillai. Against these documents appellants have produced the earliest document dated 3.9.1973, a mortgage deed, and another mortgage deed dated 8.8.1985 to show their possession and enjoyment. Apart from these documents, they have produced the house tax receipts for the year 1986, 1992 to 1995. Under U.D.R Scheme the Gramanatham lands were surveyed and survey numbers have been assigned. Thereafter, there was an attempt by the Government to levy house site tax for the natham lands and later it was given up. From the revenue records, it is clear that the suit property is comprised in S.F.NO.520-C and later surveyed as 954/9. 16. I am also not convinced with the argument that this court having accepted that the suit property is a Grama natham and that the occupier of the Grama natham becomes the owner of the property ought to have allowed the appeals thereby confirming the title to the appellants. There are two types of gramanatham, viz., occupied gramanatham and unoccupied gramanatham otherwise known as Natham poramboke. (See 1993 1 LW 383 Vaidyanath Sasthri vs The Assistant Settlement Officer and Others). Assignment of house site (kid) was in practice and the natham poromboke used to be assigned by the Government to the landless poor. One such assignment was under Ex.B.1 dated 17.8.1904. Therefore, the title initially vested with the assignee viz., Karuppa Gounden, thereafter passed on to Ponnusami Pillai, grandfather of the respondent and later to the respondent. It is not the case of the the appellants that even prior to the assignment their predecessor in title was in occupation. 17. The appellant cannot agitate the assignment under Ex.B.1 dated 17.8.1904. Though (occupied) gramanatham lands shall not be vested with the Government, an unoccupied village site which is usually called as Natham poramboke, can be assigned by the authorities and that was the practice also. 18. In (1939)MWN 207, Chinnathami Goundan vs Venkatasubramania Iyer Wadsworth, J dealt with unoccupied village site. The appellant cannot agitate the assignment under Ex.B.1 dated 17.8.1904. Though (occupied) gramanatham lands shall not be vested with the Government, an unoccupied village site which is usually called as Natham poramboke, can be assigned by the authorities and that was the practice also. 18. In (1939)MWN 207, Chinnathami Goundan vs Venkatasubramania Iyer Wadsworth, J dealt with unoccupied village site. It is held as follows: "I am of opinion that by the recognised practice of this Presidency-excluding areas with a special revenue law such as Malabar-the control of unoccupied village site land vests in the proprietor whoever he may be. In ryotwari areas that control is exercised by the Government in the revenue department by means of the grant of house site pattas without which occupation by an individual villager would be unauthorised. In zamindari areas that control is exercised by the zamindar. In a shrotriem village not falling under the Estates Land Act, I am of opinion that according to the common practice of this Presidency the control of such unoccupied village site vests in the shrotriemdar. My attention has been drawn to the decision of a Bench of this court in Venkataramana Sivan vs Secretary of State for India (1), which is a case arising out of a whole inam village wherein the Government claimed the right to penalise an unauthorised occupation of a cremation ground poramboke. It was held in that case that the Government was vested with the right of protecting such communal ground for the benefit of the community and there is an observation in the judgment of Spencer, J. To the effect the Government is the custodian of the rights of the public in lands such as sites for pagodas, burning grounds, threshing floors, cattle stands, unassigned house sites and backyards. The suggestion is that the legal title vests in the Government in trust for communal purposes" 19. Therefore, for an occupied gramanatham, the occupier and his successor-in-title become the absolute owner. For an unoccupied gramanatham, which is otherwise known as Natham poramboke, it was the practice of the Government to issue assignment for the individuals and on such assignment, that person becomes the owner of the house site. The Government, as the custodian, has the right to grant such assignment. The appellant cannot challenge the assignment, unless he proves better title. 20. The Government, as the custodian, has the right to grant such assignment. The appellant cannot challenge the assignment, unless he proves better title. 20. In 1999 3 CTC 304 S.S. Subramani, J held as follows; "23. But I do not think that the above decision will help the respondent in any way. In that very decision, Their Lordships have held that injunction cannot be granted against a person who has got a better title to the suit property. In this case, I have held that as per Ex.B.1, the appellant has got better title than the plaintiff. In a recent decision of the Honourable Supreme Court reported in Prataprai N. Kithari v John Braganza, JT 1999 (4) SC443, similar question came for consideration,. In paragraph 11 of the judgment, Their Lordships have said thus: "It is quite obvious that the learned single Judge had not taken note of the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well-settled that even the owner of the property can get back his possession only by resorting to due process of law." 24. Once it is found that the plaintiff has no title, the question of granting the relief of the basis of possessory title may not arise since the appellant herein is having better title. As against the true owner or as against the person having better title, a person claiming possessory title cannot get injunction. 21. Coming to the maintainability of the present review petition, it is well settled that in a review, the Court cannot re-write its own judgment. Order 47(1) CPC, reads as follows: Or.47 Rule 1 ; 1. Application for review of judgment: (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed. Order 47(1) CPC, reads as follows: Or.47 Rule 1 ; 1. Application for review of judgment: (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed. Or (c) by a declaration on a reference from a Court of Small Causes and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgement to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgement notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation:- The fact that the decision on a question of law on which the judgement of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgement 22. The three grounds for a review are; (i) from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, (ii) on account of some mistake or error apparent on the face of the record, and (iii) for any other sufficient reason for a review. Unless any one of the above grounds is satisfied the court shall not review its own order and shall not rewrite its judgment. 23. In the present review none of the above grounds were raised and satisfied. Unless any one of the above grounds is satisfied the court shall not review its own order and shall not rewrite its judgment. 23. In the present review none of the above grounds were raised and satisfied. Therefore, there is no error apparent on the face of the record and there is no sufficient reason to review the judgment passed by this Court. 23. In the result, both the review applications stand dismissed. No costs.